IN THE HIGH COURT OF TANZANIA (TANGA SUB - REGISTRY) AT TANGA LAND APPEAL NO. 4 OF 2023 (Arising from Land Application No. 34 of 2019 of the District Land and Housing Tribunal of Tanga at Tanga) BALATI MICHAEL (ADMINISTRATOR OF THE ESTATE OF THE LATE MAHINDOI MALUGU)... VERSUS SARA THOMAS... ... RESPONDENT JUDGMENT K.T. Mteule, J 27 June 2024 & 22 July 2024 The dispute which escalated into this Appeal originates from the estate of the late Mahindoi Malugu which is being administered by the Appellant pursuant to a letter of administration issued to him in Probate and Estate Administration Cause No. 18 of 2018 of the Primary Court of at Maramba in Mkinga District. The Appellant being the Administrator of the said estate, lodged the matter in the District Land and Housing Tribunal of Tanga claiming that the Respondent refused to surrender a residential house and a farm measuring 14 acres plus 3 goats which formed part of the estate of the deceased to enable him to perform the estate administration duties.The Respondent did not dispute the properties to have been in the ownership of the late Mahindoi Malugu. Her position is that the late Mahindoi Malugu bequeathed the properties to her and she has been in their ownership since 1997 without any interference. The DLHT having heard the parties, proceeded to determine the matter and declared the respondent to be the owner of the properties basing on the doctrine of description. Being dissatisfied, the Respondent filed this appeal challenging the decision of the DLHT on the basis of 3 grounds of appeal. Parties argued the appeal by a way of written submissions. When I was composing the judgment, I became hesitant as to whether the DLHT possessed jurisdiction over the matter taking into account its genesis which involves probate and estate administration where ownership of the property to the deceased is not disputed. Today 22™ day of July 2024, I had to call upon parties to address this court on the competence of the DLHT to determine the application which involved a matter which was subject of the Probate and Administration of Estate Cause in the Primary Court. Parties have addressed the court accordingly.Mr. Mohamed Kajembe who appeared for the Appellant admitted that the foundation of this matter and the matter in the DLHT is the estate of the late Mahindoi Malugu who passed away in 1998 which was dealt with in Probate and Estate Administration No 14 of 2018 of Maramba Primary Court where the Appellant was the Applicant and the Respondent an Objector. According to him, among the matters which were discussed in that Probate case was the involvement of the farm as a part of the estate of the late Mahindoi Malugu and on 26” November 2018, the primary Court of Maramba overruled the objection and proceeded to appoint the Appellant as an administrator of the estate of the late Malugu. Mr. Kajembe admitted that, how the matter landed in the DLHT of Tanga was an error since the DLHT does not have any jurisdiction to determine the matter arising from the Primary Court by a way of Probate Administration. In his view, the power to deal with this type of administration of estate is under the Magistrate Courts Act Cap 11 of 2019 RE, fifth Schedule which confers jurisdiction to the Primary Court to deal with all estate administration and the related applications. He submitted that after the decision of the Primary Court, whoever was not satisfied was to appeal to the District Court but neither of the parties appealed as per the required procedure.To support his argument, he cited the case of Marietha Gabo vs Adam Mtengu, Misc Land Appeal No. 21 of 2020, dated 24" February 2921 page 16 to 17, TanzLii 2021 TZHC 20344 and that of Mgeni Seif vs Mohamed Yahaya Alfani Ci | Application No. 1 of 2009 (2017) TZCA 258 page 14. He suggested that the ownership of estate of the Late Malugu was supposed to be determined by a probate court and not by filing a matter in the DLHT as preferred in this case. He thus prayed for this Court to act under section 43 (1) (b) of the Land Court Disputes Act to invoke its revisional jurisdiction conferred in this court to revise and nullify the proceedings and the decision in Land Application No 34 of 2019 so that parties may go to the appropriate forum for the finalization of this matter. Finally, Mr. Kajembe prayed that since this matter is raised by the Court suo moto, each part takes care of its own costs. On her part, and being unrepresented, the Respondent briefly stated that since there was no DLHT in the Primary Court to determine the dispute on the ownership of the land, definitely, the Primary Court could not determine the matter, that’s why they were advised to lodge it in the DLHT. Nevertheless, she agrees that the Lower courts have 4not managed to deal with this matter according to the law. She added that the Probate and Administration cause in the Primary Court is not even closed. Having heard the parties’ submissions, it is not disputed that the properties involved in this matter falls under a probate and administration cause which is not yet finally determined by having the estate administration accounted for in the Primary Court. I agree with the parties that the primary court was supposed to determine the Probate and Administration Couse No 14 of 2017 to the finality where the Administrator of estate who is the appellant would be required to account for his estate administration and not sending the matter to the DLHT. In Ally Omari Abdi vs Amina Khalil Ally Hildid (Civil Appeal No. 103 of 2016) [2016] TZCA 906 (17 November 2016) the Court of Appeal had the following to say:- "There is no doubt in our minds that in the instant appeal before us, the pleadings and also issues for trial court's determination, were over probate matters which were opened in primary courts but had not been completed in accordance with the provisions of the Fifth Schedule to the Magistrates Courts Act, Cap. 11 (the MCA). Clause 11 of the fifth schedule to the MCA provides for the duty of an administrator of the deceased's estate whohad earlier been appointed by primary courts, after completing the administration of the estate, to account to the primary court concerned for his or her administration of that estate. The relevant Clause 11 of the fifth schedule to the MCA states: "11.- After completing the administration of the estate and, if the primary court orders, at any other stage of the administration an administrator shall account to the primary court for his administration." We think, before moving on to receive the evidence from the parties, the learned trial Judge should have first determined whether the High Court had jurisdiction in the suit before her to determine probate matters which parties had already submitted before two primary courts and had not been completed by completion full accounting to dose the probate before the primary courts.” As the position in the above case as well as in the case of Mgeni Seif vs Mohamed Yahaya Khalfani cited supra by Mr. Kajembe, the District Land and Housing Tribunal of Tanga determined a matter which was not within its competence. Unfortunately, 3 goats forming part of the estate of the deceased were among the properties contested in the Application in the DLHT, but it was still registeredtherein. The DLHT went further to even determine the validity of the document alleged to be a will left by the deceased where the Chairman held it to be not qualifying to be a will. In my view, the Chairman was totally operating outside his jurisdiction in determining not only on the ownership of the property subject of incomplete Probate and Administration of Estate Cause but also determined the validity of the will and the ownership of goats forming part of the estate which by any standard cannot even remotely, be connected to land ownership. The chairman disregarded the reality that his tribunal is exclusively involved only on land disputes and never goats and deceased wills. In Mgeni Seif supra, the Justice of Appeal at page 8 stated:- “In the circumstance, only a probate and administration court can explain how the deceased person's estate passed on to a beneficiary or a bona fide purchaser of the estate for value. In other words, a person claiming any interest in the estate of the deceased must trace the root of title back to a letters of administration, where the deceased died intestate or probate, where the deceased passed away testate.” From this authority, only the court seized with the jurisdiction to determine the Probate matter can decide on the ownership of the properties falling within that estate. Basing on this analysis, I agreewith Mr. Kajembe that it is the Primary Court under the fifth Schedule to the Magistrates Court Act which is vested with the jurisdiction to determine probate and administration matters in this dispute. Therefore, the District Land and Housing Tribunal did not have jurisdiction to determine Land Application No. 34 of 2019. As suggested by Mr. Kajembe, the appropriate course in this matter is to invoke the revisional powers of this court under Sectio 43 (1) of the Disputed Land Courts Act, Cap 216 of 2019 RE and revise the Proceedings of the DLHT. It provides:- "43,-(1) In addition to any other powers in that behalf conferred upon the High Court, the High Court- (a) _ shall exercise general powers of supervision over all District Land and Housing Tribunals and may, at any time, call for and inspect the records of such tribunal and give directions as it considers necessary in the interests of justice, and all such tribunals shall comply with such direction without undue delay;” Consequently, I hereby exercise the revisional powers of the High Court, revise and nullify the proceedings of the District Land and Housing Tribunal for Tanga and the Judgment and decree arising inLand Application No 34 of 2019 with all the associated orders. Parties are to revert to the Primary Court of Maramba at Mkinga District in Probate and Administration Cause No. 14 of 2018 for the finalization and closure of the Estate Administration where all the disputes over the estate of the late Mahindo Malugu will be resolved. It is so ordered. Dated at Tanga this 22™ day of July 2024 ic > 2 > KATARINA REVOCATI MTEULE JUDGE 22° July 2024 Court: The Judgment is delivered this 22" Day of July 2024 in the presence of the Appellant and Mr. Mohamed Kajembe for the Appellant and the Respondent present in person. KATARINA REVOCATI MTEULE JUDGE 22" July 2024